What is the issue with having two general contractors on site completing two independent projects?
The issue centers on definitions, roles and responsibilities. The key definition focuses on who is the “constructor” and what his/her obligations are according to the Ministry of Labour, specifically regarding the Occupational Health and Safety Act (referred to as the Act). However, more than one definition plays a role in defining who the constructor is. We also need to have a clear understanding of the definition of “employer” and “project”. When an owner hires only one employer (contractor) to do all the work on a project, then that contractor is undertaking the work as the constructor. This contractor is often referred to as the general contractor for the project.
Each participant in a construction project has certain legal obligations and these obligations change according to the participant’s role. From the outset, it is very important that everyone’s role in the project be defined: contractor, Board of Directors, property managers and even third party project managers.
Section 1 of the Act defines “constructor” as “a person who undertakes a project for an owner and includes an owner who undertakes all or part of a project himself or by more than one employer”. A key point in defining the roles and responsibilities of the constructor is that each project can only have one constructor. The definition of “employer” is “a person who employs one or more workers or contracts for the services of one or more workers and includes a contractor or subcontractor who performs work or supplies services and a contractor or subcontractor who undertakes with an owner, constructor, contractor or subcontractor to perform work or supply services.” The dictionary defines “undertake” as “to make oneself responsible for”, therefore; the constructor is the person responsible for the project. Consequently, the constructor is the party with the greatest degree of control over health and safety for a project and is ultimately responsible for the health and safety of all the workers. The constructor must ensure that all employers and workers on the project comply with the Act and its regulations. Thus, in order for the constructor to have complete control of a project each project can only be managed by a single constructor. Furthermore, a “project” by definition covers a particular place of work or address and has an owner. So if two constructors are working on the same site the Ministry of Labour considers the site a single project unless the owner sought separation through the appropriate channels. This definition is the cornerstone to the question and it assigns roles and responsibilities to the correct party. The truly important issue for Boards of Directors of condominiums is: are they aware of the times when they become the constructor when they either hire a contractor to complete a project or have more than one contractor on site completing more than one project?
With respect to condominiums, if the Board of Directors hires two different general contractors to complete two different projects on the site at the same time then they, the Board, could become the constructor and must conform to all the rules and regulations that come with the designation. This also includes all applicable liabilities, which the Corporation may not be adequately insured to accept (or unaware they are exposed to). Thus the Board exposes itself and the Corporation to unnecessary liabilities when they hire two different contractors. And these liabilities have very real consequences if a violation of the Act occurs.
Understanding one’s role in the construction process is very important. Hiring contractors who are educated on their roles and responsibilities under the Occupational Health and Safety Act is equally important. As part of the tendering process, and before beginning any project, Boards should ask to see a company’s Health and Safety Policy. The heart of the issue is who is responsible for the health and welfare of the workers. Additionally, each participant should know their obligations.
More information can be found at “Constructor Guideline”. This document outlines in more detail the issues of responsibility and obligation, along with case studies to further expand on the issues.
If you have questions for our expert, please contact Richard Lyons at email@example.com